Permanent Total Disability Award for a Combined Specific and Cumulative Trauma Claims Awarded

This is a Workers’ Compensation Appeals Board (WCAB) Panel decision

This is a very significant case for workers’ compensation principles.

             The applicant fell from a ladder to the floor on April 12, 2012. She underwent a laminectomy in March of 2013 and returned to work shortly thereafter. She stopped working April 8, 2013.

Applicant filed a specific for the April 12th fall.  Applicant filed a cumulative trauma through April 8ty 2013. The applicant had a spinal cord stimulator which was later removed. The applicant became wheelchair bound.

The applicant was seen by an Agreed Medical Examiner. (AME) who determined the applicant had failed back syndrome. The AME determined the low back disability could not be apportioned between the two injuries.  He gave the applicant a 80 per cent whole person impairment but determined she was totally disabled from a medical standpoint.

At trial, the Worker’s Compensation Judge (WCJ) consolidated applicant’s specific and cumulative trauma cases. He awarded 100 percent disability without apportionment between injuries. Defendant filed a Petition for Reconsideration.

The Workers’ Compensation Appeals Board (WCAB) indicated the burden of apportionment is on defendant. The AME was unable to apportion between injuries because they were inextricably intertwined. Therefore, the award of 100 percent disability was approved.

Lee v MakeshopNcompany

Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Five year limit on New and Further Disability extended by need for Medical Treatment

This is a Board Panel decision

This is a very significant case for workers’ compensation principles.

The applicant was injured May of 2012 to the low back. The applicant had a discectomy in 2013 and received a 17 percent permanent disability award in January of 2015.

Later that year the applicant complained of  radicular symptoms and filed a petition to reopen his claim for new and further disability. The applicant had an MRI and a orthopedic consult discussed the need for possible surgery.

The applicant put off the need for surgery because he was going to school. In May of 2018, more than 5 years after the date of injury, an AME determined the applicant had no new periods of temporary disability or any increase in permanent disability.

The applicant filed a Declaration of Readiness to Proceed in August 2019, and the claim was set for trial in October 2020. Before the trial date the applicant had been referred for surgery.

The Workers’ Compensation Judge (WCJ) determined the petition to reopen was timely and valid. The WCJ ruled the applicant had not sustained new and further disability within five years.

Applicant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB)  overruled the WCJ indicating the need for additional surgery was sufficient to reopen the case.

Pascacio v Jacob Farm Services/Star Ins.

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Permanent Total Disability reduced by prior award to same statutory body region

This is a Board Panel Decision
This is a very significant case for workers’ compensation principles.


The applicant previously filed a claim for injury to upper digestive tract, a skin disorder, dietary restrictions, bruxism and TMJ for the cumulative trauma (CT) period of June 1980 to June 2015 and a specific of June 25, 2015 for his skin condition. The applicant received a permanent disability of 83 percent for these injuries.

The applicant then filed a ct for a period of June 1980 to February 2019 for colon cancer. The applicant was a firefighter battalion chief. The parties stipulated that the cancer was industrial pursuant to the firefighter presumption in Labor Code section 3212.1

The Workers’ Compensation Judge (WCJ) ruled that vocational evidence rebutted the rating schedule on disability and the applicant was 100 percent disabled.

The WCJ used the “catch all” provision of Labor Code 4664 (c) (1) (G) to calculate the prior award to be 34 percent for body parts that fall within that section. The WCJ then deducted the 34 percent for apportionment to give the applicant a 66 percent disability for the colon cancer injury.

The applicant filed a petition for reconsideration. The Board panel reviewed 4664 ( c) (1) (g) and case law. The Board approved the WCJ and indicated if apportionment was not allowed applicant would have received two life time pensions.

Russell v. County of Los Angeles


Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Good faith payments in closed case are credited against a subsequent claim

This is a Board Panel Decision

This is a very significant case for workers’ compensation principles.

The applicant had an injury to his right knee in 2001. The case was settled by Stipulation with Request for Award.  The applicant saw an Agreed Medical Examiner (AME) in 2009 who indicated the applicant had new and further disability.

The defendant made $23,000 in increased permanent disability payments based on this report. The applicant never reopened the case for new and further disability.

The applicant then filed a new claim for a cumulative trauma to the right knee through 2013. The same AME attributed permanent disability to the cumulative trauma.

The case went to trial.  The defendant raised the issue of credit for overpayment of permanent disability on the 2001 case.  They asserted they mistakenly believed the applicant would reopen that case and paid permanent disability.

The Workers’ Compensation Judge (WCJ) ruled that the defendant was not entitled to a credit for the overpayment. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board ruled that the defendant acted in good faith in advancing permanent disability payments for the 2001 injury. The defendant was given credit on the cumulative trauma because equity favors allowance of the credit. The WCJ was overturned.

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Psychiatric injury is allowed for a violent injury authorized under section 4660.1 c.2.4

The applicant suffered an injury to her left index finger while closing a
heavy gate at school. The gate was big and heavy. Due to it being large
the applicant had to push and follow through. She injured her finger and
the tip of her finger needed to be amputated.

This caused her anxiety and fear that resulted in her filing a psychiatric
claim. She testified at trial about her increased emotions of anxiety and
fear.

The Workers Compensation Judge (WCJ) noted that the applicant has
the burden of proving by a preponderance of evidence the injury. With
respect to a violent act causing psychiatric injury the applicant only has
to demonstrate that the actual events of employment were a substantial
cause of the injury.

Here the WCJ ruled that the applicant sustained her burden of proving
that her psychiatric injury was predominantly caused by her physical injury.

It was also the result of a violent act. The WCJ noted that the force of
the gate closing was significant enough to cause a crush injury resulting
in amputation. This was enough to meet the definition of a violent act under section 3208.3 (b) (2).

On reconsideration by defendant the Workers” Compensation Appeals Board (WCAB) agreed with the WCJ


Defendant requested in person testimony for trial denied due to Covid pandemic

This is a Petition for Removal

This is a very significant case for workers’ compensation principles.

The applicant alleged a psychiatric injury. The case was tried on March 10, 2020.  The applicant gave both direct testimony and was cross examined.  The trial could not be finished in one day. The case was continued to June 9, 2020 for defense witnesses. In light of the Covid-19 pandemic the Workers’ Compensation Appeals Board (WCAB) stopped conducting in-person trials as of March 16,2020.

Before the June 9, 2020 date the applicant requested the case continue by remote testimony.  The defendant requested a continuance so in-person testimony could be elicited from three defense witnesses.

The Workers’ Compensation Judge (WCJ) continued the case set for September 1, 2020 stating that due process required in-person testimony of defense witnesses since applicant had previously given in-person testimony. The WCJ continued it to a time in the future when in-person testimony could be given.

Applicant filed a Petition for Removal. The WCAB indicated removal is an extraordinary remedy rarely used by the Appeals Board. However, they allowed here.

Next they turned to the issue of defendant’s due process.  They indicated due process is  a flexible concept.  Due  to the global pandemic the defendant’s due process rights were not violated.  The case could be remotely tried.

Gao v. Chevron

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Applicant is deemed one hundred percent disabled with no need for apportionment

This is a Board panel decision

This is a very significant case for workers’ compensation principles.

The applicant suffered an injury to his head, neck, back, shoulders, circulatory system,and psyche as  aresult of an industrial motor vehicle accident.

The applicant saw multiple doctors including a primary care physician (PTP), neurological Qualified medical examiner (QME), and psychological Qualified medical examiner.

The psychological Qualified medical examiner apportioned 5 per cent to non industrial causes. A vocations expert testified the applicant was 100 per cent totally disabled.

The case went to trial. The  Workers” Compensation Judge (WCJ) found that the applicant was 100 percent disabled and there was no legal basis for apportionment. The WCJ declined to follow the apportionment found by the psychological qualified medical examiner.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reviewed the report of the psychologist  They determined that the apportionment was not legal apportionment.

The psychologist did not explain how and why the apportionment contributed to his permanent disability.

Based on the opinions of the QME,  PTP and vocational expert the applicant was deemed to be 100 per cent disabled.

Valdes v. City of Torrance

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Board En Banc decision on declared state of emergency on spread of corona virus

This is a Board En Banc panel decision

This is a very significant case for workers’ compensation principles.

Normally this newsletter is dedicated to providing cases related to the litigation of workers’ compensation. The world has changed and the existing order of all things has changed dramatically.

Most of the readers are now working remotely and the whole business procedure has changed.

The way we operate in Workers compensation has dramatically changed as well. The Workers’ Compensation Appeals Board issued on En Banc decision on March 18, 2020 temporarily suspending specific rules of Practice an Procedure. The decision applies to the entire state.

Dismissal of an application or lien claim for failure to appear is suspended. Workers’ Compensation Judges (WCJ) and arbitrators shall have an unlimited extension of time to issue reports in response to petition for reconsideration or removal. You no longer need two witnesses on a Compromise and Release. Signatures may be done electronically.

Suspension of requirement of service by mail on the WCAB. Service may be electronic with or without parties’ consent.

District offices are closed for filing until April 3, 2020. All filings are extended to the next day when the district offices reopen for filing. You will need to monitor when the district offices reopen. It may well be extended past April 3, 2020.

Be safe!


Board panel rescinds Workers’ Compensation Judge (WCJ) decision finding separate and distinct injuries

This is a Board panel decision

This is a very significant case for workers’ compensation principles.

The applicant worked for the employer for more than 30 years. He filed a cumulative trauma for orthopedic, hearing loss and cardiovascular injuries. The defendant accepted the hearing loss and heart injuries and denied the rest.

The case went to trial and the Workers’ Compensation Judge (WCJ) found injury to the orthopedics, hearing loss and heart. The parties stipulated at a later hearing to 64 per cent permanent disability for the cardiovascular injury and 45 per cent permanent disability for the orthopedic injuries. The WCJ ruled that the internal and orthopedic injuries were separate and issued two separate permanent disability awards. The WCJ reasoned that the cardiovascular injury was unrelated to physical work while the orthopedic was related to physical work. This justified separate permanent disability awards.

The applicant petitioned for reconsideration. The applicant contended there
was a prior decision that there was a determination of only one cumulative
trauma period. The applicant contended you only get a single combined award for orthopedic and cardiovascular injuries.

The Workers’ Compensation Appeals Board (WCAB) found there was only one cumulative trauma and the applicant was entitled to a combined award which would result in a life pension. Since there was a previous determination of the cumulative trauma period this could not be relitigated.


Applicant cannot receive temporary disability for time lost for treatment medical appointments after return to work

This is an appellate court decision

This is a very significant case for workers’ compensation principles.

The applicant had two specific injuries. The applicant was found permanent and stationary for one injury but not the other. The applicant returned work.

The applicant then missed time from work for medical treatment appointments and for appointments with the Qualified Medical Examiner. The applicant used sick time and vacation time for the appointments.

At a hearing the applicant claimed she was entitled to temporary disability (td) payments for the time missed from work. The Workers’ Compensation Judge (WCJ) ruled under section 4600 (e)(1) that that the applicant was not entitled to td for an appointment for medical treatment. The WCJ did not rule on the QME time lost.

The applicant filed for reconsideration. The WCJ on the report and recommendation again indicated the applicant is not allowed td for medical treatment but indicated the applicant can get one day of td for the QME exam. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ. The appellate court reviewed Department of Rehabilitation v WCAB and determined the applicant is not entitled to temporary disability indemnity for missed time from work to attend appointments for medical treatment. The applicant is entitled to td for the missed time for a medical examination as opposed to treatment.

Case:Skelton v WCAB


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